Comparison of British, American and French Systems of Justice
ecpmlangues.u-strasbg.fr
ecpmlangues.u-strasbg.fr
For instance, in common law countries (ie those taking their traditions from the Brits) judges are not in fact obligated to follow rules of precedent. That's the sort of thing that a textbook might say, but the reality is that judges regularly bypass or ignore previous rulings on similar matters. Similarly, in Civil law jurisdictions (those that take traditions from the French) judges regularly rely on past rulings by respected judges. The process may not be formalized, but to say that judges no not regard previous decisions on similar matters is disingenuous. They write. They read each other;s work. They learn and share in much the same way as common law jurisdictions.
Speaking as someone working in common law jurisdictions, I'd say that the primary motivation for a judge to follow a previous ruling by a higher court is not some rule of precedent. Imho they are motivated by the likelihood of their ruling being turned on appeal. That gives them much more room in which to act. That is judicial discretion. That power is why we must respect judges and why they in turn must work to deserve our respect.
You are indeed correct in most of your comment. But in France while it's true that judges read decisions by other judges, they will never ever quote another judge (except the ECHR). If for instance the Court de cassation (One of the French three (or four, or five, depends on how you count them) Supreme Courts) has said that "X has to be interpreted as Y". Lower judges will start using the sentence directly lifted from the Court de cassation decision "X should be interpreted as Y", but without quotation marks or any sort of attribution. It's a fiction that the judge came up with this interpretation by himself. Sometimes the judge will use some sort of caveat like "Il est constant que" ("It is always the case that") which is a way of saying that he is looking at precedent, without saying it explicitly.
If a judge did quote directly the Court de cassation with attribution, his decision could be appealed and be overthrown by the Court de cassation itself.
And if a judge disagrees with our Supreme Court, he will oftentimes without any hesitation "enter in resistance" (issuing decisions that go against the Court de cassation interpretation), the idea is that this is the way judges try to get the Supreme Court to change its opinion. This is also possible because he have more or less 90 judges in the Court de cassation, and turnover is quite high, so if a decision was only one or two votes in a direction (which no one knows because the votes are secret and the ratio of yays and nays also is secret), in a year, a judge or two at the court may change and the position could change.
My conclusion would be that in France we do respect precedent most of the time... but only if the judge agree with it. Our judges have a natural inclination to ignore precedent. Meanwhile in Common law countries, there is a natural inclination ot respect it... but sometimes judges disagree.
Caveat : In France, decisions by the Constitutional Council (the "Higher" Supreme Court... the Court of cassation would disagree on the "Higher" part) do create binding precedent... because those decision can change directly the text of the law. If the Council says that a sentence in a law is unconstitutional. Then the sentence is stripped out of the Code itself. Lower judges cannot therefore ignore it.
For example black receive higher sentences for drug related crimes. Women commits 30% of all murders but are 10 times less likely to be convicted.
Also in continental law sentences are shorter and more reasonable; 8 years for murder etc.
EDIT: we actually have sentences for murder 10 years to lifetime. It depends on case.
This may be the most European thing I've ever read.
He was a twice convicted felon who had already served his time but got mandatory life for a third crime, even a misdemeanor like shoplifting, under California's three strikes law.
Note that this is not something that "regularly happens in the US", it seems to be an illustration of a failure mode of California's particular implementation of a "three strikes" law under Prop 184 of 1994, which was abnormally severe (not requiring the third felony strike to be "serious or violent", as most three-strikes laws in the US do) -- and it seems to be a seriously misremembered one, at that, since even when this version of three strikes existed in CA, it still required the third strike to be a felony.
Also, this rule was changed to align CA's three strikes implementation with the common rule requiring the third strike to be a "serious or violent" felony in by Prop 36 in 2012 (which also provided a process for after-the-fact sentence adjustment for those sentenced under the old version for a third strike that would not have been subject to the enhanced sentence under the reformed version of the three strikes.)
I can't find the original 60 Minutes video, but here's a partial transcript of the episode (search for the word "batteries"):
https://listserv.buffalo.edu/cgi-bin/wa?A2=JUSTWATCH-L;16e9e...
And a book that recounts the same incident. The author is a Senior Fellow in Criminal Justice at the University of Southern California, so I assume he knows what he's talking about and has checked the accuracy of the story.
http://www.abebooks.com/servlet/BookDetailsPL?bi=8356210389&...
And someone's letter to the Governor of California with a list of three strike convictions, a number of which are not felonies:
http://www.prisontalk.com/forums/archive/index.php/t-39951.h...
That's cultural differences for you !
It's not about making the murderer suffer either, it's about preventing future crimes. When you have cancer, you don't kill cancer cells because you want them to suffer. You kill them to prevent them from killing you.
Turns out the only thing harsher penalties do (beyond a certain threshold) is make it more likely for crimes to escalate because there's no point restraining yourself (if it means leaving witnesses) if you're already going away for life / going to be murdered by the state anyway.
As a matter of fact, the best way to prevent crimes is actually preventing crimes. Figure out why people commit crimes, then try to fix that. E.g. if you stop treating addicts as criminals you can solve their underlying psychological/social problems and they don't end up robbing people to pay for drugs.
What, exactly, is the point of punishment?
Are you trying to prevent future crimes? Great, we're actually talking about crime prevention and severity of punishment is a red herring (because we actually need to consider punishment as merely one option among many).
Are you trying to satisfy victims? Okay, but now you're saying the punishment basically serves as a synthesised substitute for mob justice -- so why pretend there's anything humane about it at all?
Are you trying to deter other would-be criminals from doing the same? Great, we can actually measure the effectiveness of that empirically (spoiler: it's not great) and adjust punishments accordingly.
Or we can just build more prisons and put more people in jail (or murder them if we really don't like them) because that has worked out so well in the US.
Perhaps you should look at the US system where rich privileged kids can drive drunk, kill other passengers and avoid prison because of 'affluenza'.
The US prison system is corrupt, racist and run for the benefit of prison companies and if you don't realise that then perhaps you have been living under a rock.
Kids are far more likely to be killed by their parents or step-parents.
If it isn't premeditated, it isn't murder. Perhaps the more accurate term is "premeditated killing" in which the outcome is premeditated. But in murder only the act must be premeditated, not the consequence. Punching someone and thereby causing their death is murder, you don't need to be trying to kill someone in order to murder them, but it isn't a premeditated killing.
IMHO your example of a punch would not pass this test.
[1] http://www.cps.gov.uk/legal/h_to_k/homicide_murder_and_mansl...
[2] http://www.publications.parliament.uk/pa/ld199798/ldjudgmt/j...
Your comment and the one to whom you respond show these two points of view. It is interesting that at the moment in the US you have more a "keep the criminals away from the society" point of view and in Europe "try to reintegrate them".
Both by deterring would-be criminals, and by keeping future lawbreakers behind bars where they can't do harm.
Too harsh a punishment often only succeeds in putting someone in a position where they are even more likely to break the law.
E.g. you catch someone for smoking pot, and they get civil service and have to visit social support/psychologist/whatever. This might not do any good but it might do some.
If you send them to jail for 5 years, they it's basically guaranteed that they will get out being in a much worse position than they were before, and more likely do commit crimes.
I don't understand that. If we're worried about criminals' integration with society then we shouldn't put them in prison. Prisons exist to separate people from society.
After that, no reason to keep me in prison any more right? It's not like the dead person or their family count for anything - it's all about me and the government's budget. Yeah?
Yes, it's not about the dead person. They're dead.
It's also not about the family of the dead person. They've already been harmed.
It's not about you, it's about preventing future crimes. If you've been turned into a productive member of society, great -- everyone's off better now. If you haven't, the system has failed society (not just you).
Heck, there's a good chance prison isn't even the best solution for you personally. Most likely you need actual counselling or you're facing social problems. Containment is the last resort.
You don't fix bugs by hiding them -- you fix them by figuring out why they happened in the first place and determining how to decrease the likelihood of them happening again.
EDIT: In response to the killed throwaway: if you kill someone "in the heat of the moment" and it's not self-defence or anything else we consider acceptable, of course there's still a problem in need of fixing: self control. If you kill a man because he sleeps with your wife, no matter how betrayed you might feel, it's still a problem with how you act on those feelings. But this is only visible if you stop thinking "what is an appropriate punishment" and start thinking "why did this happen" and "what could have prevented it".
My belief is that the society failed to correctly educate the man who eventually became a criminal. I don't think people are born with such desires.
That's not something to lionize though. Pretty sad all around. There's no great wisdom there, just a leftist coping method employed by the father, similar to what a religious person would do.
I don't think it matters if the father was left, right or center. Whatever the basis, he made a decision that will ultimately benefit society (which is the main goal, right?). Whatever the political stance, we are a society. Meaning the basic idea, which is that everyone contributes so that the whole benefits, should be of utmost importance.
Besides, I don't think you need to be particularly leftist or religious to cope this way. These ideas of forgiveness and rehabilitation permeate Norwegian (even Nordic) society, and are mostly secular these days. In fact, quite a few Norwegians will tell you that they consider harsh punishments «gamaltestamentleg», i.e. only fit for reactionaries who look to the Old Testament for prescriptions on how to handle things.
What reasoning is this?
Why not have a only "for the rest of your life" punishments? You know, a thug being a thug, probably born like it. Won't ever change those people. Better lock them up, put them away. /s
Even amongst those who want to go to trial on lesser charges regularly opt for a judge rather than jury.
I.e. france and italy both have a civil law system but some crimes (murder, for example) depend on a popular jury in addition to the judge.
* the 6 jurors (9 in appeal) decide the case alongside 3 professional judges whose influence is often decisive during the jury's deliberation (and in any case they always carry 3 votes)
* there's no need for an unanimous decision: 6 votes are necessary for any conviction (8 in appeal)
In common law countries virtually everything (criminal) as been defined by statute and hardly anything is at common law. And in civil law countries judges still heavily rely on precedent to aid in interpreting law.
The US and the UK are different in one other aspect compared to most Continental countries, more exactly in the fact that they had had a "democratic" and fair judicial system for at least the last 200 years, so there's plenty of cases from which to create "fair" precedents.
For comparison, my country (in Eastern Europe) has been a Communist dictatorship for 50 years, and it would be a little strange to judge a present complaint based on cases judged in the past by communist-controlled judges. The same goes for countries like Italy (which had Mussolini and the fascists rule them for 20+ years), Germany (the Nazis), Spain (Franco), Portugal (Salazar) and so on.
Plus, in this discussion I'm more on Thomas Paine's side against Burke's, the past has no intrinsic "value" stored in itself, the common law comes from the "dark ages". I know Napoleon is still pretty much hated in the Anglo-Saxon world, but in imposing his judicial code he was on the more enlightened side of things.
IIRC this actually happened, albeit on an individual basis: When prosecuting communists in the 50s and 60s in Western Germany, some judges considered the defendant to be a repeat-offender if they had been convicted of being a communist in the Third Reich.
Yes, the judges were former Nazis.
Edit: Source (German, I'm afraid): http://www.heise.de/tp/artikel/14/14361/1.html
The reasoning was less that someone had been convicted "earlier in this country" but that they had been convicted before at all, indicating they've literally done the same thing before and gotten punished for it.
If you buy into the logic that repeat offences constitute a more severe crime, it's sensible to take prior offences into account even if they were persecuted under a different jurisdiction.
Of course the idea that "resistance against the state" under the Nazi regime could serve as a prior offence seems ludicrous but let's not pretend the persecution of communists during the Cold War was fairer than the persecution of political undesirables before (though the punishment was obviously different).
But Nazi Germany wasn't a state under the rule of law, so it's questionable whether someone convicted by one of its courts was really guilty of the crime they were accused of. I.e. the different jurisdiction wasn't trustworthy, so its verdict should have been ignored.
Can anyone give an example of this?
Most common law was codified and modernised in the latter half of the 20th century.
Edit: As an example maybe look at the recent popular case of Oscar Pistorius in South Africa in which a major contention has been the interpretation of case law by the judge to decide the appropriate category (murder vs manslaughter) and punishment for the killing of Reeva Steenkamp.
It's sounds to me like this situation no longer arises -- everything has been written down as a law.
I don't think we get many courts creating laws on picking strawberries out of season though. There would need to be an existing legal context in which strawberries picking out of season is an edge case that can be decided by case law.
Take the Scottish Breach of the Peace which is very different from the English version. "Where something is done in breach of public order or decorum which might reasonably be expected to lead the lieges being alarmed or upset or tempted to make reprisals at their own hand, the circumstances are such to amount to a breach of the peace".
The complex sounding definition is the first thing, common law offences are more descriptive of a course of action than specifically spelling out elements. Over the years cases come along which clarify the boundaries of the offence - for instance requiring a public element, defining who counts as being public (not family members for instance).
As a former police officer in Scotland I really like Scots law. It is simple enough that people tend to understand it. It is broad enough to encompass things the legal system may not have encountered before. The UK politically went through a rough time in the 2000s reassessing stalking, Parliament passes a blizzard of legislation trying to define it but didn't need to cover Scotland as it has always been treated as a Breach of the Peace.
The big problem is that some cases can have massive unintentional consequences. Two cases that happened in fairly quick succession unintentionally prevented events in your home witnessed only by your family from being a breach. On the one hand that sounds sensible (hence why the court made the ruling) but also invalidated a breach being used to prosecute domestic abuse that didn't go as far as an assault (which again in Scotland is different from England). The Scottish Parliament had to rush through what became known as the "Statutory Breach of Peace" (Section. 38 of the Criminal Justice and Licensing (Scotland) Act 2010) in order to restore the ability to do anything.